"Managing People with Morecrofts"

‘Plebgate’ – An employment law perspective.

by Thomas Sutherland

‘Plebgate’ – An employment law perspective.

Last week’s newspaper headlines were dominated by coverage of the Andrew Mitchell libel case. The coverage primarily focused on Mr Justice Mitting’s ruling that Mr Mitchell did use the word “pleb” (amongst others) during a disagreement with police officers in Downing Street two years ago.

Accordingly, Mr Mitchell’s action for libel was unsuccessful due to his inability to prove that he did not say the words quoted. I’m sure, of course, that keen followers of politics will know the specific newspaper report to consult for the direct quote should they be able to brave the colourful language quoted!

It would be interesting to apply the facts of this case to an employment scenario. So, let’s say that an office manager goes to leave work on his bike and is stopped briefly by that firm’s security personnel who wish to check his identity for their attendance list.

Let’s also say that the office manager doesn’t take too kindly to being stopped and states (with the aid of quite a few expletives and personal insults which we won’t type here!) that they should learn their place and that they don’t run the company due to their lowly position in life.

Finally, let’s finish the scenario with the office manager later denying his comments and stating that he used much milder language with the direct implication that the security staff have purposively lied about his comments.

Allegations of bullying behaviour in the workplace can be investigated on misconduct grounds. It would be particularly important to hold an investigation in the above scenario due to the risk of the situation quickly inflaming workplace relations through word-of-mouth recounts of the incident between staff. Any failure to take appropriate action would therefore risk resentment against the management from their employees, particularly the security staff.

Naturally, until the comments are proven on the balance of probabilities, any allegations of misconduct should be fully investigated through reasonable, non-confrontational steps with no disciplinary action taken before the investigation is complete. Needless to say, the provision of expert HR and legal advice is advisable before the employer takes specific action against an employee.

Should the office manager in the above scenario be found to have used the colourful language quoted and, additionally, to have sought to discredit the security staff by accusing them of intentionally lying, he is likely to face action under the employer’s disciplinary policy.

If the office manager’s misconduct is proven, the employer’s next decision would be to decide whether the office manager’s conduct could reasonably be seen as being so serious as to be classified as gross misconduct.

In the above scenario, if the conduct were proven, it is likely that the least severe action taken against the office manager would be a written warning or final written warning.

However, should the employer reasonably judge the office manager to have committed gross misconduct under their rules and policies, it could be justified in dismissing the office manager.

So, in an attempt to remain topical, whilst an employee guilty of such conduct might not be facing a £1.5m legal bill, they might still suffer damage to their career prospects through disciplinary action or dismissal.